8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
1/16
1
23
4
5
6
7
8
9
10
1112
13
14
15
16
17
MELINDA HAAG (CABN 132612)United States Attorney
DAVID R. CALLAWAY (CABN 121782)Chief, Criminal Division
JOHN H. HEMANN (CABN 165823)Assistant United States Attorney
450 Golden Gate Avenue, Box 36055San Francisco, California 94102-3495
Telephone: (415) 436-7200FAX: (415) [email protected]
Attorneys for United States of America
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIASAN FRANCISCO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.IAN FURMINGER,
D f d
))))
)))))
Case No. CR 14-0102 CRB
GOVERNMENT’S OPPOSITION TODEFENDANT FURMINGER’S MOTION FOR
BAIL PENDING APPEAL
Case3:14-cr-00102-CRB Document247 Filed03/13/15 Page1 of 7
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
2/16
D f d )
1
23
4
5
6
7
8
9
10
1112
13
14
15
16
17
presumes that the defendant should be detained pending appeal. Accordingly, courts “shall order that a
person who has been found guilty of an offense and sentenced to a term of imprisonment, and who hasfiled an appeal or a petition for a writ of certiorari, be detained,” unless the defendant can demonstrate
by clear and convincing evidence that he is entitled to relief. 18 U.S.C. § 3143(b)(1).
First, defendant must prove by clear and convincing evidence that, if released, he is “not likely to
flee or pose a danger to the safety of any other person or the community.” 18 U.S.C. §3143(b)(1)(A).
Second, even if defendant meets this first requirement, he must also demonstrate by clear and
convincing evidence that “the appeal is not for the purpose of delay and raises a substantial question of
law or fact likely to result in: (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not
include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total
of the time already served plus the expected duration of the appeal process.” 18 U.S.C. § 3143(b)(1)(B).With respect to the latter requirement, the Court must resolve two distinct questions: (1) whether
the appellate issues raised by the defendant are “substantial” and (2) whether those issues are “likely to
result in reversal.” United States v. Handy , 761 F.2d 1279, 1280-81 (9 th Cir. 1985). “[T]he word
‘substantial’ defines the level of merit required in the question raised on appeal, while the phrase ‘likely
to result in reversal’ defines the type of question that must be presented.” Id. A “substantial question”
is one that is “fairly debatable,” and“[l]ikely to result” in reversal means that “if the substantial question
Case3:14-cr-00102-CRB Document247 Filed03/13/15 Page2 of 7
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
3/16
1
23
4
5
6
7
8
9
10
1112
13
14
15
16
17
appearance of the person as required and the safety of any other person and the community,” the court is
directed to consider the “history and characteristics of the person.” 18 U.S.C. § 3142(g)(3). The BailReform Act specifically requires consideration of the defendant’s “character,” “employment,” “financial
resources,” and “history relating to drug or alcohol abuse.” Furminger, in his motion, directs the Court
to aspects of his history and character that, he contends, carry his burden by clear and convincing
evidence. But he does not tell the whole story.
First, Furminger omits his very serious alcohol addiction. PSR ¶ 75. Furminger drinks
constantly throughout the day. He was “buzzed” during his interview with the Probation Officer. He
acknowledges that he needs treatment, but any such treatment he may be getting apparently is not
working, as he continues to drink to excess.
Second, Furminger actively promotes the fantasy that he is a person of character, pointing toawards that he has received as a police officer. Def. Mem. at 4:17-20. In doing so, he simply disregards
the conduct for which he was convicted, as well as his behavior as a police officer that included
throwing small explosives out of moving cars for fun and stealing antique call boxes. He also fails to
advise the Court that he is a virulent racist and homophobe who, even while a police officer , felt free to
share his views with other individuals, including other San Francisco police officers. See Declaration of
Special Agent Tyler Nave, Ex. A. A selection of Furminger’s views, expressed in text messages sent
Case3:14-cr-00102-CRB Document247 Filed03/13/15 Page3 of 7
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
4/16
1
23
4
5
6
7
8
9
10
1112
13
14
15
16
17
• “My wife has 2 friends over that don’t know each other the cool one says to me get me a drink
nigger not knowing the other is married to one just happened right now LMFAO.”• “White power.”
• In response to a text saying “Niggers should be spayed,” Furminger wrote “I saw one an hour
ago with 4 kids.”
• “I am leaving it like it is, painting KKK on the sides and calling it a day!”
• “Cross burning lowers blood pressure! I did the test myself!”
• In response to a text saying “All niggers must fucking hang,” Furminger wrote “Ask my 6 year
old what he thinks about Obama.”
• In response to a text saying “Just boarded train at Mission/16 th,” Furminger wrote “Ok, just
watch out for BM’s” [black males].• “I hate to tell you this but my wife friend [sic] is over with their kids and her husband is black!
If [sic] is an Attorney but should I be worried?” Furminger’s friend, an SFPD officer,
responded: “Get ur pocket gun. Keep it available in case the monkey returns to his roots. Its
[sic] not against the law to put an animal down.” Furminger responded, “Well said!”
• In response to a text from another SFPD officer regarding the promotion of a black officer to
sergeant, Furminger wrote: “Fuckin nigger.”
Case3:14-cr-00102-CRB Document247 Filed03/13/15 Page4 of 7
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
5/16
1
23
4
5
6
7
8
9
10
1112
13
14
15
16
17
Furminger is not a person who can be trusted to be awarded bail pending appeal. His behavior is
sufficiently erratic and the coming prison sentence is too long to find that he has carried his burden byclear and convincing evidence.
C. Questions on Appeal
Furminger does not identify any substantial question of law or fact that is likely to result in a
reversal or order for a new trial; he does not raise sentencing as an issue at all.
Furminger’s motion is remarkable for its lack of specificity; it is almost entirely unclear what
specific rulings he is challenging. He does not cite any legal authority in support of his contention that
this Court committed error during the trial. He does not cite to a single page of the record to identify a
particular error. He did not raise any of these arguments in his motion for an acquittal or new trial. Thegovernment submits that these failures, alone, require denial of Furminger’s motion. A question on
appeal cannot be substantial if the appellant cites neither law nor fact to establish error. Leaving the
government and the Court to discern and analyze the law and facts related to possible questions on
appeal is not sufficient to satisfy the appellant’s burden.
Furminger cursorily identifies four issues, each of which the government address. First, he
contends that the Court erred by prohibiting the defense from “introducing evidence that would have
Case3:14-cr-00102-CRB Document247 Filed03/13/15 Page5 of 7
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
6/16
1
23
4
5
6
7
8
9
10
1112
13
14
15
16
17
Second, the defense claims that this Court erred by admitting over objection certain text
messages “that constituted irrelevant character evidence and were highly prejudicial.” Def. Mem. at5:16-18. This issue has neither a beginning nor an ending: Furminger does not say what text messages
he is referring to or how they were either character evidence or highly prejudicial.
Third, Furminger again raises the severance issue. The trial proved this issue to be an absolute
non-starter. Vargas testified that he conspired with both Furminger and Robles to commit a number of
thefts and that Furminger knew about others in which he did not directly participate. Hernandez
testified that Furminger was present during conversations with Robles about thefts. The standard of
review for denial of a Rule 14(a) motion to sever is abuse of discretion. United States v. Mayfield , 189
F.3d 895, 899 (9 th Cir. 1999). Severance is appropriate under Rule 14 “only if there is a serious risk that
a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury frommaking a reliable judgment about guilt or innocence.” Zafiro v. United States , 506 U.S. 534, 539 (1993).
When the appellant fails, as Furminger does here, to identify a specific trial right that was compromised,
the court of appeals will not disturb the district court’s ruling. United States v. Stinson , 647 F.3d 1196,
1205 (9 th Cir. 2011). Furminger also fails, fatally, to explain how this Court’s instructions to the jury
that it consider the evidence against each defendant individually were not adequate to protect his trial
rights. Where “the district court uses great diligence in instructing the jury to separate the evidence,
Case3:14-cr-00102-CRB Document247 Filed03/13/15 Page6 of 7
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
7/16
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
8/16
Case3:14-cr-00102-CRB Document247-1 Filed03/13/15 Page1 of 9
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
9/16
Case3:14-cr-00102-CRB Document247-1 Filed03/13/15 Page2 of 9
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
10/16
Case3:14-cr-00102-CRB Document247-1 Filed03/13/15 Page3 of 9
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
11/16
Case3:14-cr-00102-CRB Document247-1 Filed03/13/15 Page4 of 9
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
12/16
Case3:14-cr-00102-CRB Document247-1 Filed03/13/15 Page5 of 9
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
13/16
Case3:14-cr-00102-CRB Document247-1 Filed03/13/15 Page6 of 9
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
14/16
Case3:14-cr-00102-CRB Document247-1 Filed03/13/15 Page7 of 9
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
15/16
Case3:14-cr-00102-CRB Document247-1 Filed03/13/15 Page8 of 9
8/9/2019 Government Opposition to Furminger Motion for Bail Pending Appeal
16/16
Case3:14-cr-00102-CRB Document247-1 Filed03/13/15 Page9 of 9
Top Related